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C/SCA/673/2019 JUDGMENT [3.2] As provided under the Panchayat Act, several committees were to be constituted and therefore, General Board meeting was scheduled on 27.07.2018. The President of Rajkot District Congress Committee issued a Whip on 27.07.2018 by which it was declared that all the members have to vote in favour of those members in the committee, as decided by the party. It was further mentioned in the said Whip that if any member of the party does not vote or votes contrary to the Whip, it should be treated as breach of Whip and action in accordance with law shall be taken against such members. That the said meeting of General Board was held on 27.07.2018 at 11 O' Clock in presence of the Election Officer. The said meeting was presided over by the competent Officer i.e. District Development Officer, Rajkot. The present petitioner declared the names of various committees whereas the respondent No.10 who is from the same party i.e. Indian National Congress has also disclosed his members of the Committee. That 35 members remained present and one member could not remain present since he was sick. The persons who were nominated by respondent No.10 herein got support from 22 members including 2 members from another party viz. Bhartiya Janata Party. In all committees, 13 persons supported those persons who were nominated by the present petitioner. Having found that 18 members from their own party have voted against the Whip, the party decided to take action against those persons, however while exercising powers under Rule 3(6) of the Gujarat Provisions for Disqualification of Members of the Local Authorities for Defection Rules, 1987 (hereinafter referred to as "Defection Rules"), pardoned six members, however decided to file an application under the provisions of the Gujarat C/SCA/673/2019 JUDGMENT Provisions for Disqualification of Members of the Local Authorities for Defection Act, 1986 (hereinafter referred to as "Defection Act") and accordingly, an application under Section 6 of the Defection Act came to be filed by the present petitioner i.e. the President of Rajkot District Panchayat. The said application was filed in the month of September 2018. Since the application was not decided by the Designated Officer within a period of two months as provided under Rule 8 of the Defection Rules, a petition being Special Civil Application No.18759/2018 was filed by the present petitioner. The said petition was disposed of by this Court vide order dated 05.12.2018 and thereafter corrected vide order dated 26.12.2018 passed under a Note for Speaking to Minutes directing the Designated Authority to decide the petition filed by the petitioner under Section 6 of the Defection Act.

[6.2] In view of the above background, when it is the case of the petitioner - original applicant that the mandate / Whip as directed by the party President is not followed, he is bound to establish his case. The Designated Authority before whom the defection petition is pending, has to decide the case put forward by the original applicant about the alleged breach of Defection Act as well as Defection Rules. If the original applicant who has filed the defection petition before the Designated Authority, does not produce necessary documents to establish his case, then the Designated Authority is going to take decision accordingly. The original opponents cannot ask / compel the original applicant to produce such documents relying upon which he wants to defend his case. It is needless to say that the original applicant needs to prove his case about serving of mandate issued by the party, whether or not the opponents have refused to accept the Whip issued by the party etc. and therefore, if the original applicant fails to establish the same, he would face the consequences. It is the basic principle of law that a person putting a claim has to establish the same. The Designated Authority has to decide the case on the basis of the material which is available for his consideration.

[7.0] Hence, the petition is allowed. Impugned order dated 07.01.2019 passed by the respondent No.2 - Designated Authority in Defection Application No.63/2018 is hereby quashed and set aside. The Designated Authority shall proceed with the Defection Application No.63/2018 as per the directions issued by this Court in its order dated 05.12.2018 passed in Special Civil Application No.18759/2018. Rule is made absolute accordingly.

[8.0] At this stage, Mr. Siraj Gori, learned advocate appearing for the private respondents has requested to stay the execution, implementation and operation of the present judgment and order for a period of two weeks.